By Matthew Gaines

The Department of Housing and Urban Development (HUD) has issued guidance restricting the use of criminal background checks to screen prospective residents. The guidance warns property owners that a blanket policy rejecting residents solely because they have a criminal record may violate the Fair Housing Act, because it could have a discriminatory impact on minorities.

Although this HUD advisory primarily targets rental property, it has potential implications for condo communities, which, like all housing providers, must comply with the anti-discrimination requirements of the Fair Housing Act.

HUD’s specific concern is that because a disproportionate number of minorities have criminal records (resulting, the guidance says, from “widespread racial and ethnic disparities in the criminal justice system”) tenant selection criteria based on criminal records are likely to affect minorities disproportionately.

“Bald assertions based on generalization or stereotype” aren’t sufficient, the guidance explains, nor will a “blanket prohibition” excluding everyone with a criminal record satisfy Fair Housing requirements.

The guidance requires housing providers using criminal history as a selection criterion for residents to determine first if the policy might have a discriminatory impact. If so, providers must demonstrate that:

The policy is necessary to achieve a “substantial, legitimate, non-discriminatory interest”; and that

There is no less discriminatory alternative that could achieve the goal.

Condominium associations aren’t typically involved in the selection of tenants for rental units in their communities and, if nothing else, this guidance re-enforces our long-standing advice that boards should steer well clear of any involvement in the selection process.

Complying with the Guidance

But association boards and residents are understandably concerned about the possibility that convicted sex offenders might be living in their communities. Those concerns are likely to be heightened in communities in which children reside. While associations can’t prohibit sex offenders (or anyone else, for that matter) from buying a property in their community, they can adopt a bylaw amendment prohibiting offenders from residing there, and many associations have taken that step. If not crafted carefully, these bylaws could stumble over HUD’s new guidance.

On the central question ― whether associations can bar occupancy by convicted sex offenders ―the HUD guidance does not appear to create any obvious or immediate cause for concern. A sex offender ban doesn’t target minorities directly nor does it have a demonstrably disparate impact on them (there being no apparent evidence that a disproportionate number of sex offenders are minorities). The ban also seems to satisfy the requirement that it must serve a legitimate, nondiscriminatory association purpose (protecting the safety of residents generally and children in particular) that could not be achieved by other means.

Bylaws barring sex offenders typically reference the state sex offender registry, which discloses the identities of individuals convicted of the most serious (Level 2 and Level 3) sex offenses. This approach would seem to satisfy another HUD requirement ─that housing providers take a nuanced view of an individual’s criminal record, considering the nature of the crime, the circumstances surrounding it, and the risk the behavior poses for other residents.

“An individualized assessment of relevant mitigating information beyond that contained in an individual’s criminal record is likely to have a less discriminatory effect than categorical exclusions that do not take such additional information into account,” the guidance states.

A Reasonable Time Frame

This is where some bylaws may fall short. “Relevant mitigating information” includes when a crime was committed and an individual’s behavior since ― factors condominium sex offender bans don’t typically consider. The HUD guidance suggests that they probably should. Someone who committed a crime 25 years ago and has been out of prison and out of trouble for 15 years arguably poses less of a risk than someone convicted three years ago and released last month. This, at least, is an argument someone challenging a condominium sex offender ban might use.

Anticipating that prospect, condominiums planning to adopt a sex offender ban should specify that it covers offenses committed a certain number of years ago, or applies to c
onvicted offenders who have been out of prison for a specified number of years –since an individual’s last conviction or since the individual was released from prison, whichever is longer, might be reasonable. Associations might also consider establishing longer time frames for more serious (level 3) offenses ─ another means of demonstrating the nuanced distinctions HUD’s guidance encourages.

Associations that already have sex offender bylaw in place might want to amend them in light of the HUD guidance, but I don’t see any urgency to do so. The odds that an existing policy will be challenged are slim ─ not nonexistent, but decidedly slim — simply because the sex offenders who would likely challenge the policy are unlikely to want to publicize the fact that they are offenders.

A Proactive Response

The sex offender issue doesn’t arise often in the condominium arena; a poll would find few condo associations that have ever dealt with the problem. Even so, communities that haven’t enacted sex offender bans should consider doing so, especially if the community’s residents include children, whose parents are likely to be most concerned about proximity to an offender.

I recommend a proactive approach for this reason: A residency ban will prevent offenders from moving into your community, or certainly discourage them from doing so; if you don’t have a ban in place, there won’t be much you can do if you discover after-the-fact that a known offender has purchased a unit. Adopting a ban at that point will be closing the barn door too late, because you won’t be able to enforce it retroactively. An offender will have all the ownership rights of any other purchaser and you will have no more basis for evicting him or her than you would for evicting any neighbor you don’t like for any reason.

The association might have more options for dealing with a sex offender who is renting a unit, but even there, it is better to bar the tenancy in the first place rather than insist that an owner evict an existing tenant and face a potential legal battle to enforce the association’s policy.

Unfair Burden ─ On Offenders?

HUD’s guidance, as noted earlier, doesn’t target condominiums or sex offenders specifically. But the agency’s concern that the reliance on criminal background checks may be limiting housing opportunities for minorities echoes a concern some courts and civil rights advocates have expressed about convicted sex offenders —that restrictions on where they can live and congregate may be unfairly and unreasonably burdening them, as well. There are several examples:

In what appears to be the only appellate level case challenging a condominium sex offender ban, (Mulligan v. Panther Valley Property Owners Association) a New Jersey court identified two public policy concerns: The impact of these restrictions on sex offenders themselves and the impact on populations who don’t live within communities where predators are banned. While offenders are not a “protected class” covered by non-discrimination laws, the court acknowledged, “it does not necessarily follow that large segments of the State could entirely close their doors to such individuals, confining them to a narrow corridor and thus perhaps exposing those within that remaining corridor to a greater risk of harm than they might otherwise have had to confront.” The key public policy question” raised by the ban, the court said, is whether widespread adoption of such restrictions “would severely and unreasonably restrict the residency options of offenders who have served their time and been released from prison.”
Finding the evidence submitted in the case insufficient to assess this public policy issue, the Appeals Court overturned the lower court decision that had upheld the ban, while declining to rule on the issue itself. The court made it clear, however, that the questions it had raised about the impact of denying access to housing for a segment of the population would weigh heavily in future challenges to bans like the one adopted by Panther Valley.

The City of Lynn recently approved an ordinance prohibiting registered sex offenders from establishing “a permanent or temporary” residence within 1000 feet of a school or park in the city. However, the ordinance exempts from that restriction registered offenders who established a residence before the effective date of the ordinance and offenders living with “a person related by blood or marriage within the first degree of kindred” in the city.

In Texas, a sex offender whose wife owned a condominium unit sued the condominium association, arguing that the policy prohibiting offenders from living in the complex violated his constitutional rights, interfered illegally with his right to buy and sell property and was otherwise contrary to public policy. The case was ultimately settled out of court, so it didn’t produce either a court decision or a record of how it was resolved.

In a 2007 case, (Mann v. Georgia Department of Corrections), the Georgia Supreme Court found that an ordinance barring offenders from living within 1000 feet of a child care facility, church, school or areas where minors congregate, constituted an unconstitutional taking of their property, because offenders might be “repeatedly uprooted and forced to abandon homes” in order to comply. “Courts must remain mindful that the Takings Clause is intended to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,’ ” the court said.

Back in New Jersey, a three-judge panel of the state’s Appellate Court ruled recently that municipalities in the state may not prohibit convicted sex offenders from living near schools, playgrounds, day care centers and other places where children gather. This unanimous ruling held that such restrictions on where convicted offenders can live “interfere with and frustrate” efforts to monitor these individuals and re-integrate them into society.

Citing a similar argument, the California Supreme Court found unconstitutional a voter initiative barring sex offenders from living within 2000 feet of schools and parks. Compliance with that provision, the court found (in In Re Taylor), “greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited,” the court said, “while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.”

Whether these examples represent a trickle or a trend isn’t clear. It is certainly possible to find examples pointing in the opposite direction. Among them:

The Colorado Supreme Court earlier this year upheld an ordinance passed by a Colorado municipality barring sex offenders from living within 2,000 ft. of a school, park or playground or within 1,000 feet of a day care, recreational center or pool. (Ryals v. City of Englewood.) Although the ordinance effectively put 99 percent of the city off limits for offenders, the court found no conflict between the ordinance and a state law governing the supervised release and housing arrangements for convicted offenders;

A federal judge has upheld an Indiana law banning registered sex offenders from gaining access to Facebook and other social network sights used by children;

The Louisiana House and Senate have approved different versions of a measure that would prohibit convicted sex offenders from working as door-to-door salesmen in that state; and

The developers of a condominium community under construction in Lubbock, TX are promising to conduct criminal background checks of all prospective buyers to ensure that no sex offenders move into that community.

The civil rights activists who are beginning to question such restrictions argue essentially that everyone, including convicted sex offenders, must live someplace. Does that mean they must be allowed to live in condominium communities?

I think the answer, at least for now, is no. The new HUD guidance and legal challenges I’ve mentioned certainly raise questions associations must consider. But I think bylaw amendments barring occupancy by offenders, if well-drafted and narrowly targeted, will be upheld. Whether that will continue to be true depends on how HUD and the courts answer all of these legal and public policy questions in the future.